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August 14, 2004

I'm home . . . and grumpy about the Sixth Circuit

Though I am very happy to be home and lucky to have dodged two hurricanes, I am very grumpy to find out that the Sixth Circuit in US v. Koch, No. 02-6278 (6th Cir. Aug. 13, 2004), yesterday "pulled a Hammoud" — i.e., they mimicked the work of the Fourth Circuit in US v. Hammoud (background here) by affirming en banc a guideline sentence while entering this order:

We hold, with a formal opinion and dissenting opinion to follow, that the decision of the U.S. Supreme Court in Blakely V. Washington, 124 S. Ct. 2531(2004), does not invalidate the appellant's sentence under the federal Sentencing Guidelines. Accordingly, the district courts within the Sixth Circuit are hereby instructed to continue sentencing defendants in accordance with the Guidelines, as they did prior to Blakely. In the interest of judicial economy, and pending a definitive ruling by the Supreme Court, we recommend that the district courts within this circuit also announce at the time of sentencing a sentence pursuant to 18 U.S.C.A. Sec.3553(a) (West 2000 & Supp.2004), treating the Guidelines as advisory only.

That my adopted home circuit has gone this route is troubling for a number of reasons: (1) we now have a fourth circuit essentially copping out by refusing to explore what Blakely could really mean for federal guideline sentencing (see concerns here); (2) the assertion that the announcement of an alternative sentence will serve the interest of judicial economy seems to defy reality, if not also the rule of law (see explanation here and here), and (3) the practice of issuing an important order without supporting opinions seems to foster confusion and uncertainty, and also is at least a partial abdication of a judicial commitment to provide a fully reasoned explanation for all decisions.

I guess I should not be too upset with the Sixth Circuit for following the Fourth Circuit's lead in Hammoud, since that decision nearly two weeks ago was so compellingly justified in the Fourth Circuit's written opinions. Oh, wait, my mistake — we still have not heard why or how the Fourth Circuit reached its conclusion in Hammoud; a full two weeks later an opinion has not been issued in Hammoud. Hmmm.... I guess the Fourth Circuit's complete silence is more persuasive to the Sixth Circuit than all the thoughtful district court opinions which have found that guidelines constitutionally problematic after Blakely (details here).

Finally, there is a great bit of irony in the Koch ruling: the Sixth Circuit is now recommending the announcement of an alternative sentence following the logic of the original Sixth Circuit panel decision in Montgomery (background here). The Sixth Circuit might have saved a lot of time and energy — and also, in my view, have been far more jurisprudentially honest — if it had simply left the Montgomery decision in place, and then simply "recommended" that district courts also announce a guideline sentence at the time of sentencing.

Blakely and the Slow Flow of Cases

Post from Ron: (On the road, with plans to attend the NASC conference)
The news coverage of Blakely hits different parts of the country at different moments. It sometimes takes a remarkably long time for a District Court in a given city to be faced with a sentencing hearing that raises Blakely issues. When that happens, the local paper introduces readers to the issue with a story like this about the filing of a superseding indictment in the federal case against a former Qwest executive in Colorado, or a story like this about state prosecutors considering "exceptional sentences" against two Seattle teens accused of killing a school classmate.

Another "triggering event" would be a story about a renowned local defendant, serving a finalized sentence, who asks for retroactive application of Blakely. Here is one such story from Kentucky. Like many article from this genre, this article provides some sketchy details about what local federal judges are doing in response to Blakely and thus fills in some of the details of Blakely's impact which do not always appear in published decisions.

One of the many surprises for me about the Blakely litigation is just how many tactics are available to judges and lawyers to temporarily slow or stop the cases in what is normally a very busy criminal justice system. I certainly prefer to hear news about judges and lawyers who are applying their ingenuity to fashion a new set of sentencing and negotiation practices. But lawyerly ingenuity is also in full flower in the remarkable ability of some federal courts to slow the flow of cases, at least for a few months.

Has the Sixth Circuit ruled?

I received a report that the Sixth Circuit handed down a decision late yesterday in US v. Koch, the case taken en banc to consider Blakely issues. This link on the Sixth Circuit site reports this for yesterday's Sixth Circuit dispositions:

02-6278 USA v. Koch
ORDER filed - AFFIRM

But I cannot find anything else about the ruling. I am about to head into the car for at 10-hour ride home, but in the meantime I hope that readers might be able to fill in the missing details in this obviously noteworthy development.

The Empire Strikes Back

After another week of quirky work by the federal circuit courts, as of this writing there are now more circuits which are requiring its district courts to apply the federal guidelines as written (the Second, Fourth and Fifth), than circuits which are requiring modifications in light of Blakely's constitutional requirements for sentencing enhancement (the Seventh and Ninth). Of course, there were periods of time in which the federal guidelines were unconstitutional in the Sixth and Eighth Circuits, but en banc efforts of these courts have clouded the applicable rules in these jurisdictions.

This new circuit reality is stunning, in part because the vast majority of district court judges to issue written sentencing opinions since Blakely have concluded that they can no longer constitutionally apply the federal guidelines as written. It also is disconcerting because, as Ron noted in his discussion of the Second Circuit's Mincey ruling (details here), it would be very valuable for the Supreme Court and Congress and the Sentencing Commission to be able to draw on the insights and experiences that emerge when lower court judges seriously struggle with developing a constitutionally viable and sound sentencing system in the wake of Blakely.

I know my own understanding of both Blakely and post-Blakely sentencing realities has been critically informed and enhanced by district court rulings like Judge Goodwin's work in Johnson and Shamblin, and Judge Enslen's work in Hakley, and Judge Holmes' work in O'Daniel, and Judge Lynch's work in Emmenegger, and Judge Battaillon's work in Swan and Terrell, and Judge Singal's work in Zompa, and Judge Gertner's work in Meuffleman, and Judge Presnell's work in King, and Judge Rakoff's work in Marrero, and Judge McMahon's work in Einstman, and Judge Kaplan's work in Roberts, and Judge Weinstein's work in Khan, and Judge Stewart's work in Montgomery, and of course Judge Cassell's work in Croxford. And this long list of insightful and informative district court decisions necessarily leaves out all the other important and thoughtful work done by federal district judges (more details here and here and complete reports at this link).

Sadly, the list of thoughtful, insightful and informative post-Blakely circuit court rulings is much, much shorter.

August 13, 2004

Judge Goodwin speaks about alternative sentencing

Though I am still in transit home from a week away, I have the benefits of a fast internet connection tonight and not a moment too soon. There is a lot of end of the week news to report (in posts to follow), but at the top of the list is (another) fantastic opinion from Judge Joseph Goodwin of the Southern District of West Virginia in US v. Johnson, No 6:04-00042 (S.D. W. Va. Aug. 13, 2004). In Johnson, Judge Goodwin explains why he declines to follow the Fourth Circuit's recommendation in Hammoud (background here) to impose an alternative sentence treating the guidelines as advisory after imposing a first sentence under the guidelines. The full opinion, which can be downloaded below, is a wonderful read. Here's a taste:

To deal with uncertainty wrought by Blakely, a few courts have suggested that imposing alternative sentences may prevent further disarray once Blakely's effect on the Guidelines is more clearly established. These courts cite no authority for the proposition that a court may impose an alternative sentence. Presumably, the validity of these alternative sentences depends upon some inherent power of the sentencing court to act in the interests of judicial economy.

Although preserving judicial resources is a worthy goal, it is not equal to the goal of maintaining confidence in our justice system. People must believe — and courts must assure — that judgments depriving citizens of their liberty are required by law and lack neither finality nor certainty. Confidence in the system is undermined when a judge treats a defendant like an unruly child ordered to go to his room and stay there until the courts determine a just punishment. I respectfully decline, without binding direction, to play the role of wavering disciplinarian.

Hypothetical sentencing is an abdication of my duty to decide legal issues. It is surely unprincipled, if not unlawful, for lower courts to describe alternatives and present those alternatives to a higher court for a final, binding decision. Summarizing the relevant legal arguments and offering possible conclusions is not judging. Judicial decision-making, like the adversarial process upon which it stands, thrives on the pressure of reaching — and explaining — a single result. Formulating multiple-choice questions to be answered by a higher court is an inappropriate and injudicious substitute for deciding a case.

Here, of course, the Fourth Circuit has made a decision that Blakely does not apply to the Guidelines. It has also recommended, however, that this court give an alternative sentence that would presumably take effect if the Supreme Court disagrees. My concern is that district courts and appellate courts must routinely make decisions that may be affected by cases pending on appeal before higher courts. If the function of lower courts is reduced to offering up a this-or-that option for later judgment, then the intellectual rigor promoted by the pressure to decide the issue is eliminated. Put simply, judicial decision-making is an act best performed without a net.

The report is full of general and specific observations about sentencing, some of them widely shared and others more contested. You can see, though, why the position against mandatory minimum sentences is fast becoming the focal point of the debate that the Report is generating.

The mandatory minimum recommendation is also drawing a response now from the Department of Justice. Various U.S. Attorneys around the country are publishing op-ed articles in local newspapers making the argument for continued use of mandatory minimum sentences. Each is tailored to the specific district, but the identical language and paragraph structure in many of the letters makes it clear that they are all drawn from the same template. For an example of the DOJ Form Letter, see here.

I believe the letters are wrong on the merits. The first basic argument in the DOJ Form Letter is that crime has gone down during years when DOJ has relied more heavily on mandatory minimum sentences, therefore the mandatories must have caused the decline in crime. Lots of criminologists are convinced (and I am convinced too, though I am not a criminologist) that large increases in the use of incarceration will have a positive effect on crime rates. But that surely doesn't mean the each and every device (like mandatories) that we use to increase the use of prisons should be praised for reducing crime. And it doesn't mean that every reduction in the use of prison will lead to greater crime.

In short, the DOJ Form Letter is conflating two different questions: the overall scale of the prison system, and the flexibility of the laws that send people into prison. Inflexible sentencing laws controlled by prosecutors and nobody else are not necessary to get whatever mix of crime control and prison costs (both fiscal and human) that the public wants.

The second argument of the DOJ Form Letter is that the federal mandatory minimum sentences allow for a "safety valve," so they not so inflexible after all and produce no real injustice. Again, I think the letters are wrong on the merits. The safety valve is not available as a practical matter in very many cases, and it is quite easy to find examples of people who are serving pointless and cruel sentences for crimes that deserved a lesser sentence.

Apart from the merits, I must also offer this bleak observation about the political environment. The Department of Justice was asked repeatedly to take part in the deliberations of the ABA Commission, and they stayed away. They sent no representatives, offered no advice, exchanged no views. Now that DOJ is responding with guns blazing, it does not bode well for the quality of debate and exchange that will need to happen if Congress decides to refashion federal sentencing. Why can't DOJ follow the path of so many state prosecutors, who manage to participate in real debates about sentencing in their states without the scorched earth tactics?

The ABA Report's Lucky Timing

Post from Ron:
I promised earlier that I would comment on the substance of the ABA Justice Kennedy Commission report (background here). It seems to me that this report proves the power of good timing. The fact that it arrived now, rather than six months ago, or one year from now, gives the report a power it might otherwise have lacked.

The report paints with broad brush strokes. During the year-long study and drafting process, I thought that a more focused approach would be more effective, because I believed that the chances of any fundamental rethinking of federal sentencing were slim. At the time, I concluded that the best chance of getting any changes at all would be to focus tightly on specific injustices (such as crack cocaine sentences) built into the current structure.

All of those calculations failed to calculate for Blakely. The Supreme Court has now made it highly likely that Congress will reconsider some of the fundamentals of federal sentencing law, and in such an environment a broader set of pronouncements can have a real effect. On the whole, I am now more positive about the impact ABA Report on public debate.

That's not to say that the report sets out my ideal set of working principles for a sentencing system, and the report pretty clearly does not embody any broad-based consensus about how to design a system. Such a consensus might not exist. But there is a lot of positive here, and I do favor the general emphasis of the report on allowing for individual differences in sentences and maintaining a transparent and accountable role for the sentencing judge. The repeal of the 25% rule, restoration of a looser appellate review standard, and more delegation to the Sentencing Commission would all be happy outcomes, in my opinion.

The report's condemnation of mandatory minimum sentences is currently getting the most attention, and I will post separately about that.

Interesting insights from Michigan

Only late Thursday night did I have the chance to read a thoughtful opinion sent my way from the chambers of Judge Richard Alan Enslen of the US District Court for the Western District of Michigan. In US v. Hakley, No. 1:02-CR-159 (W.D. Mich. Aug. 12, 2004), Judge Enslen adds himself to the list of jurists finding the federal sentencing guidelines unconstitutional after Blakely, though he does so in the course of a re-sentencing in which this finding allows him to re-impose a sentence that the Sixth Circuit had previously reversed.

In Hakley, Judge Enslen first notes that "some courts have decided to delay sentencings until the status of the Guidelines is determined by the Supreme Court," but then explains that he "finds the need to sentence defendants expeditiously outweighs the benefits of waiting for the Supreme Court to act." He goes on to conclude "that Blakely does apply to the United States Sentencing Guidelines because of the similarities between the federal and Washington state’s sentencing systems, and because of the wording of Blakely itself." In a telling turn of phrase (which the Second Circuit should read closely), Judge Enslen says he "believes Blakely's redefinition of the term 'statutory maximum' has changed the judicial landscape too much for the guidelines to be propped up by mere implication."

Judge Enslen thereafter concludes that "the Guidelines are not severable and that Blakely therefore renders them wholly unconstitutional in all cases." He explains that he "finds that the Guidelines must be struck down in their entirety because severance would frustrate at least two of the three objectives of the Guidelines.... A sentencing system that applies only in certain cases or that allows for decreases but not increases in a defendant’s sentence is neither uniform nor proportional."

Finishing his general analysis with a flourish, Judge Enslen says "the Guidelines should be returned to their originally intended state, a system designed to structure rather than dictate judicial discretion." This can be achieved by regarding the guidelines as non-binding but advisory: "By treating the Guidelines as advisory rather than mandatory, judges will gain the benefits of having a comprehensive set of recommendations available to them while avoiding the drawbacks of being forced to follow those recommendations even when they are clearly inapplicable."

Then, turning to the specific of the case before him, Judge Enslen uses his new sentencing freedom to re-impose a sentence that the Sixth Circuit had reversed (and instructed to be lower) in application of the guidelines. In so doing, Judge Ensler had a few choice words about the "alternative sentencing" approach:

The Court will not issue an alternate sentence at this time. Any pronouncement of an alternate sentence would be mere dicta and of little use to the court. Furthermore, in many cases, courts would have to impose at least three alternative sentences for defendants: one applying the Guidelines in their entirety, one applying all Guidelines except those that enhance a defendant’s sentence, and one non-Guidelines sentence. Finally, the benefits of alternative sentences are unclear given the fact that the alternative sentence could not be imposed without further hearing.

August 12, 2004

Second thoughts about the Second Circuit

The circuit court for which I worked for two years, and which made me proud with its certification gambit in Penaranda (background here), has now disappointed me with its work today in US v. Mincey (details here). I can conceive of pragmatic reasons for why the Second Circuit might want to "adhere to the law of this Circuit" and have its courts "continue fully to apply the Guidelines." But in Mincey, the Second Circuit provides no jurisprudentially sound reasons for how after Blakely it can still "adhere to the law of this Circuit" and have its courts "continue fully to apply the Guidelines."

Perhaps the Second Circuit believes the distinction between administrative and statutory guidelines permits judicial enhancements based on a preponderance of the evidence in the federal system; but the court neither articulates nor defends this position in Mincey. Perhaps the Second Circuit believes that application of the old guidelines until the Supreme Court renders a decision on their constitutionality will be least disruptive and can still preserve defendants' rights during this period of uncertainty; but the court neither articulates nor defends this position in Mincey. In other words, Mincey is really just an order, not a decision -- akin to what the Fourth Circuit has done so far in Hammoud. But the Fourth Circuit at least has said a fuller explanation of its order will be forthcoming in full written opinions. It seems that all we will be getting from the Second Circuit is this per curiam opinion in Mincey. For a host of reasons, I wish the Second Circuit at least tried to do more.

I am also left to wonder if this means that all the thoughtful district judges in the Second Circuit who had thoughtfully concluded that the federal guidelines could not be fully applied after Blakely (details here and here and here and here and here and here and here and here and here) must now go back and apply the guidelines they believe are constitutionally problematic.

Second Thoughts in California's Fifth District

As discussed in this effective law.com article, California's Fifth Appellate District Court of Appeal yesterday substantially modified the standing order it entered last week (background here), which stated that the court would "no longer compensate appointed counsel for research or briefing directed to any issue presented by Blakely v. Washington." The Fifth District's modified order, which has somewhat mollified defense counsel concerned about safeguarding their client's rights and can be accessed here, states:

Pending opinions by the California Supreme Court in People v. Towne (review granted Jul. 14, 2004, S125677), and People v. Black (review granted Jul. 28, 2004, S126182), if appellate counsel wishes to raise any issue presented by Blakely v. Washington (2004), he or she may file a letter consistent in form with the attached “Supplemental Argument Pursuant to Standing Order No. 04-1,” thereby preserving the issues for further state and federal review. Counsel need not file an application for leave to file the supplemental statement....

The purpose of this order is to ensure that the subject issues will be raised and preserved for review in an efficient manner.

The Second Circuit's Backup Plan

Post from Ron:
Reader Alex Eisemann just brought to my attention a decision from the Second Circuit that appears to give up on the court's unusual move (background here) to certify Blakely questions to the Supreme Court. Here is a link to the opinion in United States v. Mincey, which is functionally a unanimous decision of the en banc court (known in local parlance as a "mini en banc").

The court more or less recognizes that its certification strategy is not holding water:

Although our Court, acting in banc, has certified to the Supreme Court questions concerning whether Blakely applies to the Guidelines, we now conclude that, pending the Supreme Court’s answers to these questions, either in response to our certification or in the decisions in Booker and Fanfan, or both, it is appropriate to give the district courts of this Circuit guidance as to whether and how to employ the Guidelines when sentencing defendants. We therefore proceed to decide the sentencing aspects of this case on their merits.

After a review of pre-Blakely precedent on jury factfinding in guideline sentences in the Second Circuit, the court refuses to revisit the question until the Supreme Court speaks:

The pending issue for us is whether we should now abandon the prevailing law of this Circuit because of arguments based on what the Blakely decision might portend for the future of Guidelines sentencing. We conclude that we should not. In the first place, the Supreme Court explicitly stated in Blakely that “[t]he Federal Guidelines are not before us, and we express no opinion on them.” Secondly, because of the Supreme Court’s grants of petitions for certiorari in Booker and Fanfan and the setting of an expedited schedule, we can expect to be advised soon in the event that the Supreme Court intends to apply Blakely to the Guidelines. Under these circumstances, we will adhere to the law of this Circuit.

We therefore reject appellants’ arguments that, in this Circuit, the Sixth Amendment now requires every enhancement factor that increases a Guidelines range to be pleaded and proved to a jury beyond a reasonable doubt. Unless and until the Supreme Court rules otherwise, the law in this Circuit remains as stated in Garcia, Thomas, and our other related case law. We conclude that the district court did not err in sentencing defendants in accordance with the Guidelines as previously interpreted by this Court.

In so holding, we expect that, until the Supreme Court rules otherwise, the courts of this Circuit will continue fully to apply the Guidelines.... The mandate in this case will be held pending the Supreme Court’s decision in Booker and Fanfan. Should any party believe there is a need for the district court to exercise jurisdiction prior to the Supreme Court’s decision, it may file a motion seeking issuance of the mandate in whole or in part. Although any petition for rehearing should be filed in the normal course pursuant to Rule 40 of the Federal Rules of Appellate Procedure, the court will not reconsider those portions of its opinion that address the defendant’s sentence until after the Supreme Court’s decision in Booker and Fanfan. In that regard, the parties will have until 14 days following the Supreme Court’s decision to file supplemental petitions for rehearing in light of Booker and Fanfan.

This new strategy, like the certification gambit, takes the Second Circuit out of the business of crafting a viable sentencing system in the months that must pass before the SCOTUS rules. What a shame. We need as much variety of experience as possible if and when Congress turns to the job of redesigning the federal sentencing system, and the judges in the Second Circuit could have contributed some terrific ideas here.

ABA Justice Kennedy Commission Report and its Namesake

Post from Ron:
Last year, Justice Kennedy addressed the annual meeting of the ABA and had some striking and unflattering things to say about criminal punishment in the United States, particularly in the federal system. He called for involvement in these issues by all lawyers. What he got was a committee; maybe the wider involvement by lawyers will happen in due time.

The ABA Justice Kennedy Commission has now issued four reports, and all four were approved by the ABA House of Delegates last Saturday. The published version arrived yesterday, including a new section of the report dealing with Blakely. A link for downloading is available below. The first of the four reports deals with "Punishment, Incarceration, and Sentencing." The second addresses "Racial and Ethnic Disparity in the Criminal Justice System," while the third discusses "Clemency, Sentence Reduction, and Restoration of Rights." The fourth talks about "Prison Conditions and Prisoner Re-entry."

I will comment on the report a bit later. For now let me just observe the appropriate posture of Justice Kennedy in this sequence of events. His comments to the ABA, framed at a suitable level of abstraction, were a real catalyst for both reflection and action by lawyers. He (properly) did not participate in the proceedings of the Commission, and accepted the report and recommendation of the group with courtesy but without endorsing its content. And in his Blakely dissenting opinion, Justice Kennedy made it clear that he draws a distinction between his policy views on federal sentencing (he would presumably change a great deal about the system) and his constitutional interpretation (he would have affirmed the Washington guidelines).

The Myth of Economical Parallel Sentences

Post from Ron:
As part of my "Ron Meets the Real World Tour," I have been chatting lately with prosecutors and defense attorneys in federal court, especially in the Fourth Circuit. You may recall that the Fourth Circuit, in Hammoud (background here), held that the guidelines were still constitutional but also "recommended" that district judges impose an "alternative" sentence treating the guidelines as advisory.

Based on my conversations so far, it appears that few district judges are accepting the invitation from the Fourth Circuit. They are imposing sentences under the guidelines without adjusting local practice to allow for a parallel "advisory guideline" process. The reason the judges often give is that the alternative sentence, meant to conserve judicial resources, will not accomplish this goal. Doug saw this one coming, although the details about why alternative sentences are not economical remind us how much we miss when viewing the world from the vantage of an appellate judge.

The district court judges point out that if the Supreme Court does rule that the guidelines are unconstitutional, the sentences imposed in the meantime will all be remanded for sentencing anyway. Assuming that an "alternative" sentence exists somewhere in the record, it will not be formally recorded in the judgment but will be buried in the transcript somewhere, and the proceedings may not even be transcribed at that point. The defendant will also have the right to be present during the resentencing on remand, if only to hear the judge repeat the earlier "alternative" conclusion. Finally, a decision to impose an alternative sentence at this point requires all the parties to anticipate the facts that might be relevant under new law, and the procedures best suited to uncover the relevant facts. The attorneys will probably not be satisfied at some later date with the preliminary judgments they made on these questions the first time around, and will be asking to re-open some questions.

In short, given the paperwork involved in preparing for a resentencing, the necessity to schedule a hearing anyway, and the likely pressure from attorneys to reopen the merits, the judges believe that the alternative hearing will not truly save them much effort. Thus, for at least some districts in the Fourth Circuit, life goes on as if Blakely never happened ... for now.

UPDATE: This story from the Charleston Courier and Post describes the decision by Judge Duffy in the District of South Carolina to impose three separate sentences: a guideline sentence, a guidelines-as-advisory sentence, and a sentence ignoring only the sentence-enhancing components of the guidelines. The story notes that this is the first case to be sentenced in the district since Blakely. So it looks like the Fourth Circuit's advice is being heeded in some districts. What remains to be seen is which is truly the most efficient response to the current uncertainty.

August 11, 2004

DWI, Word on the Street in NC, part II

Post from Ron:
I posted some observations earlier about the reaction of some state prosecutors in North Carolina to Blakely. I have continued to visit with prosecutors and defense attorneys around the state (part of my annual "Ron Meets Real World Tour") and the story gets more varied and interesting by the day.

While the prosecutors in some jurisdictions in North Carolina have taken no steps yet to restore the use of aggravated range sentences, attorneys in one urban jurisdiction tell me that the District Attorney moved right away to seek aggravated range sentences in some cases. Three aspects of the new practice are worth noting here.

First, the procedure is fulsome, but not without precedent. The prosecutors allege sentencing enhancement factors in the indictment and stand ready to prove those facts to the trial jury in bifurcated proceedings (not yet explicitly authorized by statute) beyond a reasonable doubt. The details for this procedure are drawn from existing practices to prove a defendant's status as a "habitual felon" or to prove a firearms enhancement.

Second, the practice is selective. Prosecutors are picking out higher priority cases, where the aggravated range can add some pretty substantial amount to the sentence duration (a finding of aggravated circumstances in North Carolina does not affect the available dispositions). As one might expect, more serious crimes of violence are the main targets of this effort.

Third (and for me most interesting), much of the action right now takes place in DWI cases. These crimes are sentenced outside the normal "structured sentencing" framework in North Carolina, and they depend fairly routinely on the finding of various aggravating factors after the basic conviction for driving while impaired. For instance, driving with a person under 16 years of age in the car is an aggravating factor that can increase the authorized sentence range. In this more routine reliance on enhancements, the North Carolina DWI law resembles the federal "relevant conduct" structure. It makes sense, now that I think about it, to find that most of the Blakely action in North Carolina is happening where the state system most closely resembles the federal.

Blakely and victims' rights

A fascinating new Blakely issue emerged in a decision from the Arizona state courts yesterday. In State ex rel. Romley v. Dairman, 2004 WL 1774619 (Ariz. App. Aug. 10, 2004), the court was considering the impact of the Victims' Bill of Rights in Arizona's constitution on a sentencing proceeding in a child molestation case. In the course of its analysis, the court had interesting things to say about the impact of Blakely on these sorts of issues:

We must address the impact of the United States Supreme Court's recent decision in Blakely v. Washington, No. 02-1632 (U .S. June 24, 2004) as it relates to the victims' rights issue before us.... Blakely obviously affects whether a trial judge, without a waiver from the parties, can aggravate a sentence based on the statutory aggravating factor of "physical, emotional and financial harm caused to the victim." A.R.S. § 13-702(C)(9).

We do not rule on the constitutionality of Arizona's sentencing scheme because that issue has neither been presented nor briefed. We refer to Blakely for two reasons only: (1) it is clear to us that the trial court will need to consider Blakely when providing for the particular type of sentencing proceeding (judge or jury) at which the victim has rights, and (2) regardless of the type of sentencing proceeding that Blakely constitutionally requires, the trial judge has a statutory and Arizona constitutional mandate to allow for the presentation of permissible evidence by a victim at a sentencing proceeding whether that proceeding is before the trial judge, the jury, or a combination of the two. See Ariz. Const. art. 2, § 2.1(A)(4) (victims have the right to "be heard at any proceeding involving a post-arrest release decision, a negotiated plea and sentencing ") (emphasis added); A.R.S. § 13-4410 (requiring that a victim be notified of her rights, including the right "to make a victim impact statement" and "to be present and heard at any presentence or sentencing proceeding") (emphasis added). Victims' rights are not restricted to sentencing proceedings conducted by the court. They must also be provided for in sentencing proceedings that are constitutionally required to be undertaken by a jury.

Blakely's impact on restitution and habeas

With so many possible Blakely cases and dockets already overburdened, it is perhaps not surprising to see courts giving a judicial stiff arm to many Blakely claims. (The Eleventh Circuit's recent work in Curtis and Levy denying defendants even the opportunity to raise Blakely in pending cases is an obvious example.) But the sloppy jurisprudence we are seeing as courts sack defendants' Blakely arguments is both discouraging and disconcerting.

For example, the Tenth Circuit yesterday seemed to fumble a Blakely issue concerning a restitution order in US v. Wooten, 2004 U.S. App. LEXIS 16449 (10th Cir. Aug. 10, 2004). In Wooten, the court rejected the defendant's claim that a restitution order based on judicial factfinding violated Apprendi, and in a footnote stated that "Mr. Wooten's Blakely argument fails for the same reason as his Apprendi argument, which is that the amount of the restitution award does not exceed any prescribed statutory maximum." But because Blakely changed our understanding of what Apprendi means by "prescribed statutory maximum," I am pretty certain that the analysis is not so easy. More generally, the playbook on exactly what Blakely means for restitution orders is going to take a lot of judicial time and energy to work out.

Similarly, US District Judge Philip G. Reinhard in US v. Lowe, 2004 U.S. Dist. LEXIS 15455 (N.D. Ill. Aug. 9, 2004), also dropped the ball concerning the possible application of Blakely in a habeas case. In Lowe, the court relies on the Supreme Court's decision in Shriro to find "that Blakely does not apply retroactively to motions under § 2255." But, as previously stressed here and here, it is improper for a court to rely on Shriro alone to find Blakely not retroactive (in part because Shriro did not have to consider the critical issue of a change in the applicable burden of proof).

Spanning the Circuits

With big circuit news on the horizon — e.g., we still await written opinions from the Fourth Circuit in Hammoud and I believe the Sixth Circuit has an en banc Blakely case scheduled for hearings today — smaller news emerges daily as the circuits cope with a range of post-Blakely litigation realities.

For example, yesterday the First Circuit issued an extremely long opinion in US v. Cianci, 2004 U.S. App. LEXIS 16421 (1st Cir. Aug. 10, 2004), affirming the convictions of the former mayor of Providence and some associates on public corruption charges. At the end of the opinion, the First Circuit panel explains in this way how sentencing issues will be handled:

In light of the Supreme Court's recent decision in Blakely v. Washington, 124 S. Ct. 2531 (June 24, 2004), we do not decide the sentencing appeals raised by all defendants as well as challenges by defendants and the government to the district court's forfeiture order. By separate order, we have requested additional briefing and oral argument on these issues.

In something of a contrast, yesterday the Eleventh Circuit in US v. Curtis, No. 02-16224 (11th Cir. Aug. 10, 2004), continued its (questionable) efforts to keep certain defendants from being able to raise Blakely claims. As Howard Bashman first reported here, in Curtis the Eleventh Circuit rejects a defendant's request to file post-oral argument, pre-decision supplemental brief raising Blakely issues. As Howard astutely notes: the Curtis "order demonstrates [that] the Eleventh Circuit is strictly enforcing the waiver rules that normally apply in appellate litigation. Some other circuits, in contrast, appear to be taking a more lenient approach."

The Curtis decision is noteworthy (and troubling) not only for expanding the Eleventh Circuit's restrictions on who can now raise Blakely claims (details here), but also because tucked into footnote 2 are important (and contestable) conclusions about plain error analysis in light of Blakely. Specifically, the Eleventh Circuit says, "as an alternative basis for our decision, we conclude that Curtis has failed to demonstrate plain error," and in support of this conclusion the court asserts that "we discern no miscarriage of justice in the case, nor do we believe this case presents a situation that seriously affects the fairness, integrity or public reputation of judicial proceedings." Though I do not know if the case's facts support or refute this conclusion, but I cannot help but wonder how can the Eleventh Circuit be confident there is no miscarriage of justice without even allowing Curtis to brief this issue.

Relatedly, a defense attorney reports from the Ninth Circuit that the court is issuing orders in some previously decided cases (which are not yet officially "final") which essentially postpones final determination of sentencing issues "pending resolution of the effect of Blakely v. Washington on the United States Sentencing Guidelines." But, as this attorney insightfully notes, "I thought that the Ninth Circuit has already decided that issue in Ameline. I guess everything is on hold in the Ninth Circuit until the Supreme Court issues its decision."

Finally, the Tenth Circuit yesterday issued an opinion in US v. Wooten, 2004 U.S. App. LEXIS 16449 (10th Cir. Aug. 10, 2004), with a questionable Blakely ruling concerning a restitution order, but this issue merits its own distinct post.

August 10, 2004

What jury sentencing looks like

Though some opinions have suggested that jury sentencing is impossible or simply unfathomable, everyone should to remember that we rely on -- and often even take some pride in -- jury sentencing in the administration of the death penalty. And, airing on ABC tonight and tomorrow, the documentary "In the Jury Room" will make history by presenting the actual deliberations of an actual jury in a death penalty case from Ohio. Background about the show can be found in this Newsweek article.

Though the propriety and impact of filming jury deliberations is worthy of debate (somewhere else), readers of this site might consider whether what we see in this show should make us more eager or less eager to create a world with greater jury involvement in sentencing.

Enron Runs On

Post from Ron:
The Houston Chronicle published a story today describing the effects of Blakely on the Enron criminal trials. The first Enron defendants were set to proceed to trial next week, but the U.S. Attorney revised the indictment to include facts supporting upward adjustments in the offense level, so the judge granted a postponement of the trial until September 20. The government will seek a bifurcated proceeding and prove the sentencing adjustment facts if they get any convictions on the charges.

Remember, this happened in the Fifth Circuit, where the guidelines supposedly are considered valid and where nothing supposedly has changed! The case points out the real limits of appellate courts to control events on the ground. The federal prosecutors (rightly) conducted their own analysis of the risk and apparently concluded that the Fifth Circuit ruling was overly optimistic about the status of current federal sentencing law, and the district judge (rightly) is allowing the government to respond to this risk with some procedural innovations.

In other news: the Bozeman Daily Chronicle reports an interesting new federalism dynamic. Where defendants once clearly preferred state court rather than federal court because of the lower sentences for comparable crimes in state court, some are now hoping to be sent into federal court, where the uncertainties of federal sentencing can keep even the wildest dreams of defendants alive.

Finally, Debra Saunders, a columnist for the San Francisco Chronicle, writes today about Blakely. She explains the Blakely decision (a little too casually, I think) as one step in a broader effort to reform federal sentencing, and concludes with this thought:

America cannot forget how it got where it is. First, too many judges were too easy on criminals. Then members of Congress were too harsh in their sentencing laws. Maybe that's why Scalia and company have looked to the people for relief.